Legislative Update: No More Credit Checks in Hawaii?

Legislators in the state of Hawaii have drafted a bill that would prohibit employers from using credit reports when conducting employment background checks, similar to the proposed legislation in Connecticut (House Bill #5521).

The stated purpose of Hawaii House Bill 31 is “to protect individuals from discriminatory employment practices by making it unlawful for an employer to refuse to hire or employ, or to bar or discharge from employment, or otherwise discriminate against any individual because of an individual’s credit history or credit report.”

A similar measure was proposed and nearly passed into legislation in California last year, until Governor Arnold Schwarzenegger vetoed it. The argument against this legislation is the same argument that can be made for the Connecticut bill. In rejecting the bill Gov. Schwarzenegger said, “This bill would significantly increase businesses’ exposure to civil actions over the use of credit checks. Further, the bill would increase administrative costs to those employers who must legitimately use credit reports as a screening tool by requiring that the employer first abide by its onerous requirements. California employers and businesses have inherent needs to obtain information about applicants for employment. The bill would become a new employer obstacle to the use of available information needed to make hiring decisions.”

If you are on the fence on this one, just remember the law of unintended consequences. Let’s say that you are considering hiring a Chief Financial Officer and you no longer have the ability to conduct a credit report. The credit report might have revealed that this individual had several liens and judgments and that they owed more money than their salary could provide. In short, the credit report would have revealed a lack of personal responsibility on behalf of the candidate. Now that candidate has unfettered access to your organization’s financial records, bank accounts, etc. What that person does in anyone’s guess? Is it worth the chance? Now let’s expand that out to a bank employee or IT person. Both have access to a significant amount of customer money and data. Still on the fence?

If you are an employer in the state of Hawaii and believe that this will have an adverse affect on your business, I encourage you to contact Jon Karamatsu and, or Robert Herkes.

Read Hawaii House Bill 31

Hawaii House Bill 31 Threatens Use of Credit Checks (2/27/2009)

We have been informed by the National Association of Professional Background Screeners (NAPBS) that legislators in the state of Hawaii have drafted a bill that would prohibit employers from using credit reports when conducting employment background checks, similar to the proposed legislation in Connecticut (House Bill #5521).

The stated purpose of Hawaii House Bill 31 is “to protect individuals from discriminatory employment practices by making it unlawful for an employer to refuse to hire or employ, or to bar or discharge from employment, or otherwise discriminate against any individual because of an individual’s credit history or credit report.”

A similar measure was proposed and nearly passed into legislation in California last year, until Governor Arnold Schwarzenegger vetoed it. The argument against this legislation is the same argument that can be made for the Connecticut bill. In rejecting the bill Gov. Schwarzenegger said, “This bill would significantly increase businesses’ exposure to civil actions over the use of credit checks. Further, the bill would increase administrative costs to those employers who must legitimately use credit reports as a screening tool by requiring that the employer first abide by its onerous requirements. California employers and businesses have inherent needs to obtain information about applicants for employment. The bill would become a new employer obstacle to the use of available information needed to make hiring decisions.”

If you are on the fence on this one, just remember the law of unintended consequences. Let’s say that you are considering hiring a Chief Financial Officer and you no longer have the ability to conduct a credit report. The credit report might have revealed that this individual had several liens and judgments and that they owed more money than their salary could provide. In short, the credit report would have revealed a lack of personal responsibility on behalf of the candidate. Now that candidate has unfettered access to your organization’s financial records, bank accounts, etc. What that person does in anyone’s guess? Is it worth the chance? Now let’s expand that out to a bank employee or IT person. Both have access to a significant amount of customer money and data. Still on the fence?

If you are an employer in the state of Hawaii and believe that this will have an adverse affect on your business, I encourage you to contact Jon Karamatsu and, or Robert Herkes.

Read Hawaii House Bill 31

Related Links
Connecticut House Bill 5521 Threatens Use of Credit Checks Update: California Bill to Limit Credit Reports Vetoed
California Employers Beware: Right to Review Credit Reports Threatened
Credit Reports: A Window to the Soul?

City to Require Background Checks to Rent Buildings

City to require background checks to rent buildings

Thursday, February 26, 2009
Pittsburgh Post-Gazette

Background checks now will be required of anyone wanting to rent a city school building for a private or group event.

The school board Tuesday voted to require building use appplicants to provide state police, FBI and child abuse clearances — the same clearances required for prospective employees.

The district will deny the use of buildings to anyone whose criminal record would prohibit employment with the district. That list of offenses includes most major crimes and sex offenses.

For now, only the person applying to use the building must submit the clearances. In the future, the district may request the clearances for other adults participating in an after-hours activity at a school building.

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2/23/2009 Louisiana Courts: Mardi Gras

Louisiana Courts: Mardi Gras

All courts in the state of Louisiana will be closed on Monday February 23, 2009 through Wednesday the 25th in celebration of Mardi Gras. There will be a limited number of courts in other states that will be affected as well. Expect a 72 hour delay in all requests leading up to the holiday.

Criminals in the UK Apply for Teaching Jobs

It seems that our friends across the pond have some major issues on their hands.  It appears that over 7000 CONVICTED criminals applied to become teachers last year.  The Criminal Records Bureau (CRB) provides background checks to the schools but has no idea how many of them were hired.

CRIMINAL CLASSES: JOBS FOR EX-CONS

NEARLY 7,000 convicted pedophiles, killers and kidnappers applied to become teachers last year.

The Criminal Records Bureau (CRB) revealed brothel keepers, flashers, child beaters and drug dealers were also among those after classroom jobs.

Last night Secretary of State for Children Ed Balls demanded an investigation after the disturbing figures were released under the Freedom of Information Act.

They showed 6,750 of the 248,220 people who applied for classroom jobs last year had criminal records.

They included two who had taken indecent photos of children and four convicted of manslaughter. The CRB carries out checks for employers on job candidates who may be unsuitable to work with children or other vulnerable people.

But a Home Office spokesman admitted they had no figures to show if any of them landed teaching jobs.

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Stories of the Absurd: “I warned you!”

Workplace violence is no laughing matter.  Well, maybe in this case it is.

Tense office relationship takes a decidedly nasty turn

By Brian Hamlin, The Reporter

In the 21st-century office, no workplace accessory is more sacred than the treasured desk toy.

We’ve all seen them – Major League Baseball bobblehead figures, musical staplers, Roger Rabbit mouse pads and little stuffed animals that seem to resemble, more often than not, the dust bunnies found under one’s desk.

These tiny treasures are sacrosanct and usually respected by officemates who, despite what they really feel, will occasionally comment “Nice troll” or “Cool disco skull.”

On occasion, however, everyday office tensions overwhelm otherwise good-natured desk jockeys and hostilities can escalate rapidly.

I witnessed, with horror, just such a scenario not long ago when two of my usually polite and urbane officemates became embroiled in a vituperative dispute over telephone etiquette. When the dust cleared, an inoffensive desk dinosaur had been permanently maimed.

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employeescreen University Guest Article: Background Checks and the Internet

Labor and employment attorney, Jackie J. Ford of Vorys, Sater, Seymour and Pease LLP recently published an article on MarketWatch about the problems employers can face by using information found on social networking sites in the background check process.  We liked it so much, we asked her if we could publish it on employeescreen University and she graciously accepted our invitation.  See excerpt below.

Why Employers Should Reconsider Facebook Fishing

Various studies suggest that upwards of 40% of employers have trolled Facebook and other social networking sites for information on potential hires — and that when they find negative information on these sites, more than 80% of the employers factor that information into their hiring decisions.

Given how common the practice is, are employers well advised to use whatever information they can, from wherever they can? Not so fast.

While there is no specific prohibition on checking an applicant’s Facebook page, employers should carefully weigh the potential hazards before entering these waters. Here are four of the biggest traps for the unwary:

  1. State and federal discrimination laws discourage “too much information.” Let’s say an applicant’s Facebook page includes heartfelt descriptions of his ongoing battle with cancer. Whether this is the sort of information you meant to find or not, you’ve now seen it — and when the applicant is turned down for the job and files his disability discrimination claim against your company, you’ll have to explain how and why the medical information did not figure into your decision-making. That’s the tough thing about Pandora — it’s nearly impossible to put her back in the box.
  2. The jury is still out on whether a Facebook search may be subject to limits on background checks. If you use a third party service to conduct certain types of background checks, the Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the individual being investigated. In the Facebook context, few employers want to do this because, among other things, they don’t want to give the applicant time to remove offensive material before the search begins. While it’s far from clear that the FCRA applies to Facebook fishing, most of us would rather avoid being the test case defendant in an FCRA lawsuit. In addition, some states are enacting their own “FCRA plus” laws which, like California’s, require consent from the applicant even if you don’t use a third party to do the search.
  3. Some states prohibit denying a job to someone because of off-duty conduct that is not illegal. We’ve all heard the horror stories of Facebook postings that take on a life of their own — the photos of beer guzzling, the boasts about sexual escapades, or the just plain boorish stuff that seems funny to your college Facebook friends but decidedly unattractive to a prospective employer. In some states, that information is off-limits for hiring decisions — unless, of course, you can show a direct link to the responsibilities of the job itself. In West Virginia, for example, an employer can’t deny a job to someone purely because the person is an off-duty smoker; in New York, “consumption of legal products” is protected activity.
  4. Shockingly, not everything on Facebook is true. It’s one thing to rely on information an applicant directly provides to you. It’s another thing to rely on information posted by the applicant or others on a website. A Facebook page, like every other public forum, can be the voice of puffery, trickery, and, yes, fakery. In short: browser beware.

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Why Employers Should Reconsider Facebook Fishing

Why Employers Should Reconsider Facebook Fishing

Editor’s NoteThis article, written by Jackie Ford of [Vorys, Sater Seymour and Pease LLP](http:vorys.com), was originally published by MarketWatch on February 11, 2009. You can find the original article by clicking here.

Commentary: Four Reasons What You Find Out Can Hurt You

Which of the following questions can you ask a job applicant?:

  • What is your ethnic background?
  • How old are you?
  • What’s your religion?
  • What medical conditions do you have?

The answer, of course, is “none of the above,” because state and federal laws prohibit it.

But what happens when the employer gets this information not by asking the applicant but by getting it from another source — such as Facebook, MySpace, or another social networking site?

Various studies suggest that upwards of 40% of employers have trolled Facebook and other social networking sites for information on potential hires — and that when they find negative information on these sites, more than 80% of the employers factor that information into their hiring decisions.

Given how common the practice is, are employers well advised to use whatever information they can, from wherever they can? Not so fast.

While there is no specific prohibition on checking an applicant’s Facebook page, employers should carefully weigh the potential hazards before entering these waters. Here are four of the biggest traps for the unwary:

1. State and federal discrimination laws discourage “too much information.” Let’s say an applicant’s Facebook page includes heartfelt descriptions of his ongoing battle with cancer. Whether this is the sort of information you meant to find or not, you’ve now seen it — and when the applicant is turned down for the job and files his disability discrimination claim against your company, you’ll have to explain how and why the medical information did not figure into your decision-making. That’s the tough thing about Pandora — it’s nearly impossible to put her back in the box.

2. The jury is still out on whether a Facebook search may be subject to limits on background checks. If you use a third party service to conduct certain types of background checks, the Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the individual being investigated. In the Facebook context, few employers want to do this because, among other things, they don’t want to give the applicant time to remove offensive material before the search begins. While it’s far from clear that the FCRA applies to Facebook fishing, most of us would rather avoid being the test case defendant in an FCRA lawsuit. In addition, some states are enacting their own “FCRA plus” laws which, like California’s, require consent from the applicant even if you don’t use a third party to do the search.

3. Some states prohibit denying a job to someone because of off-duty conduct that is not illegal. We’ve all heard the horror stories of Facebook postings that take on a life of their own — the photos of beer guzzling, the boasts about sexual escapades, or the just plain boorish stuff that seems funny to your college Facebook friends but decidedly unattractive to a prospective employer. In some states, that information is off-limits for hiring decisions — unless, of course, you can show a direct link to the responsibilities of the job itself. In West Virginia, for example, an employer can’t deny a job to someone purely because the person is an off-duty smoker; in New York, “consumption of legal products” is protected activity.

4. Shockingly, not everything on Facebook is true. It’s one thing to rely on information an applicant directly provides to you. It’s another thing to rely on information posted by the applicant or others on a website. A Facebook page, like every other public forum, can be the voice of puffery, trickery, and, yes, fakery. In short: browser beware.

Ms. Ford is a partner in the Vorys Columbus office and practices primarily in the field of labor and employment law, with an additional practice in health care systems, behavioral health and privacy. Ms. Ford handles all aspects of employment law, from policy development and training to defending Equal Employment Opportunity Commission (EEOC) charges and litigation. She develops and negotiates the full range of employment-related agreements and works with employers to conduct internal investigations of alleged discrimination and harassment. In addition to representing numerous retailers, Ms. Ford also works closely with a variety of manufacturers, educational institutions, restaurants, and other employers.

Other Related Articles:

Social Networking Sites and Employment Screening

Social Networking Background Checks Again!

More on Social Networking and Background Checks

Guilty by Association?

In yesterday’s online edition of the New York Times we found a great article.   When verifying employment are employees being found guilty by association?   Being in the background screening industry for over 15 years I have to say this is a new concept to me.  I have many relationships with many HR professionals and I don’t know of any that subscribe to this practice.  I could not recommend hiring an executive from one of these corrupt companies but I would be surprised if their general labor pool had any idea of what was happening.  I would love to hear your take on this!

Can an Employer’s Past Follow Its Workers?

JOB hunting in this market is hard enough. Pity the candidate coming from Bernard L. Madoff Investment Securities, the Stanford Group or another company tainted by bad news of one sort or another.

Many recruiters and hiring managers do not hold the employee responsible for the possible sins of the employer. But others may. With unemployment at a 17-year high and the job market flooded with flawless C.V.’s, candidates in question may have to work especially hard to convince managers that they are not damaged goods.

“As a recruiter, you are automatically going to jump to conclusions because of the company they worked for,” said Shawn Desgrosellier, managing partner at Kaye/Bassman International, an executive search firm in Dallas. “Your wish is that H.R. will want to evaluate them based on their competencies, skill sets and qualifications. However, by working for an Enron or one of those types of companies we all know, it’s probably going to hurt you — to what extent, no one knows.”

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